Citation Nr: 1532517
Decision Date: 07/30/15 Archive Date: 08/05/15
DOCKET NO. 12-14 565 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Gainesville, Florida
THE ISSUE
Entitlement to payment or reimbursement of unauthorized medical expenses incurred at Baptist Medical Center-Beaches, Jacksonville Beach, Florida, from August 4, 2010 to August 6, 2010.
REPRESENTATION
The Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Russell Veldenz, Counsel
INTRODUCTION
The Veteran served on active duty from November 1988 to August 2001.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2011 administrative decision letter by the Department of Veterans Affairs (VA) Medical Center in Gainesville, Florida (VAMC).
In June 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record.
Following the issuance of the statement of the case in January 2012, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c).
FINDINGS OF FACT
1. On August 2, 2010, the Veteran sought emergency room treatment at the Baptist for chest pain, and other symptoms after being advised by VA to immediately go to an emergency room rather than seek medical treatment at the nearest VA facility.
2. Resolving all doubt in favor of the Veteran, a reasonably prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health and a VA medical facility with an emergency room department was not feasibly available to the Veteran.
3. VA has already granted the Veteran's claim of entitlement to reimbursement for unauthorized medical expenses incurred on August 2, 2010 and August 3, 2010.
4. Resolving all doubt in favor of the Veteran, the Veteran was not stable enough to transfer to a VA facility from Baptist Medical Center-Beaches, Jacksonville Beach, Florida, from August 4, 2010 to August 6, 2010.
5. Resolving all doubt in favor of the Veteran, attempts to transfer the Veteran to a VA medical facility with a bed were made but no feasible VA medical facility with a bed was available.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized medical expenses incurred at Baptist Medical Center-Beaches, Jacksonville Beach, Florida, from August 4, 2010 to August 6, 2010, have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2014); 38 C.F.R. §§ 17.5, 17.120, 17.126, 17.1002 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In Barger v. Principi, 16 Vet. App. 132 (2002), the United States Court of Appeals for Veterans Claims (Court) held that the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to cases involving the waiver of recovery of overpayment claims, pointing out that the statute at issue in such cases was not found in Title 38, United States Code, Chapter 51. Similarly, the statute in these matters is also not found in Chapter 51; rather it is in Chapter 17. However, in Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005), although not explicitly stated, the Court appeared to assume the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error.
In addition, the provisions of Chapter 17 of 30 U.S.C., and 38 C.F.R. Section 17, contain their own notice requirements. When a claim for reimbursement of unauthorized medical expenses is disallowed, VA is required to notify the claimant of its reasons and bases for denial, his or her appellate rights, and to furnish all other notifications or statements required by Part 19 of Chapter 38. 38 C.F.R. § 17.132.
As the Veteran's claim for reimbursement is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA or Chapter 17 of 30 U.S.C., and 38 C.F.R. Section 17 with regard to the claim is not necessary.
Facts
On August 2, 2010, the Veteran began experiencing chest pains or chest tightness with shortness of breath among other symptoms. The Veteran received his care at VAMC and contacted VAMC by telephone. The care provider who answered the call strongly urged the Veteran to seek treatment at his local emergency medical care service. The veteran appeared reluctant but then his chest pains worsened and he called 911.
The Veteran went to and was hospitalized at Baptist Medical Center-Beaches, Jacksonville Beach, Florida (Baptist) that same day August 2, 2010. While at Baptist, an X-ray was inconclusive as to whether it demonstrated definitive pneumonia. Moreover, he had a history of possible valvular heart disease. Therefore, his caregivers at Baptist had concerns he suffered a cardiac event. He was placed on antibiotics and responded well enough for him to be discharged by August 6, 2010.
The medical records from Baptist, however, reveal that the Veteran asked to be transferred to VAMC as soon as possible as he had no insurance and had financial concerns. The Veteran's physician at Baptist thought some cardiac testing could be done later at VAMC, but, at a minimum he wanted the Veteran to undergo a stress test to determine if there was a cardiac problem. The stress test, however, had to be postponed until the day he was discharged, August 6, 2010, because he continued to have a fever. The discharge diagnosis was early pneumonia and there was no evidence of reversible myocardial ischemia.
As noted, the Veteran had financial concerns remaining at Baptist and he testified that he continually requested Baptist to contact VA about a transfer because he did not want to be a financial burden to Baptist. A VAMC note indicates a Baptist case manager did call a VAMC social worker for arrangements for a transfer. The VA social worker referred the request to the VA transfer coordinator, but no further documentation regarding any potential transfer appears in the records.
The Veteran testified that he was told a bed was not available at either the Gainesville or the Lake City VAMC.
The Veteran filed a claim for reimbursement for the costs of the hospitalization and treatment at Baptist. The Gainesville VAMC agreed to pay for August 2 and August 3, 2010 treatment but denied all costs from August 4, 2010 to August 6, 2010 after a physician concluded he was stable and could be transferred before August 4, 2010.
Analysis
Congress has authorized the reimbursement for unauthorized emergency medical treatment under two statutory provisions. 38 U.S.C.A. §§ 1725, 1728 (West 2002). Under 38 U.S.C.A. § 1728, VA may provide payment or reimbursement of the expenses of care not previously authorized, in a private or public hospital not operated by VA for emergency treatment of service connected or related disabilities. 38 U.S.C.A. § 1728; 38 C.F.R. §§ 17.120-17.132. In contrast, under 38 U.S.C.A. § 1725, pursuant to the Veterans Millennium Health Care and Benefits Act (Act), payment or reimbursement of non-VA emergency medical services for nonservice-connected disorders for Veterans without insurance is available if certain conditions are met. 38 U.S.C.A. § 1725; 38 C.F.R. §§ 17.1000-17.1008.
It appears the VAMC denied the Veteran's claim under 38 U.S.C.A. § 1725. There is no indication from the record, nor has the Veteran alleged, that he meets the criteria for benefits under 38 U.S.C.A. § 1728. See 38 C.F.R. §§ 17.120, 1747(i). Thus, the Board must turn to the law regarding reimbursement for emergency services for nonservice-connected conditions in non-VA facilities, 38 U.S.C.A. § 1725.
Section 1725 provides general authority for reimbursement for the reasonable value of emergency treatment furnished in a non-Department facility to those Veterans who are active Department health-care participants who are personally liable for such non-VA treatment and not eligible for reimbursement under the provisions of 38 U.S.C.A. § 1728. See 38 U.S.C.A. § 1725. To be eligible for reimbursement, the Veteran has to meet all nine requirements set forth in 38 C.F.R. § 17.1002, which are:
(a) The emergency services were provided in a hospital emergency department or a similar facility held out as providing emergency care to the public.
(b) The claim for payment or reimbursement for the initial evaluation and treatment is for a condition of such nature that a prudent layperson would have reasonably expected that delay in seeking medical attention would have been hazardous to life or health (this standard would be met if there were an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part);
(c) A VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson (as an example, these conditions could be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined that the nearest available appropriate level of care was at a non-VA medical center);
(d) The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized);
(e) At the time the emergency treatment was furnished, the Veteran was enrolled in the VA health care system and had received medical services under authority of 38 U.S.C. Chapter 17 within the 24-month period preceding the furnishing of such emergency treatment;
(f) The Veteran is financially liable to the provider of emergency treatment for the treatment;
(g) The Veteran has no coverage under a health-plan contract for payment or reimbursement, in whole or in part, for the emergency treatment (this condition cannot be met if the Veteran has coverage under a health-plan contract but payment is barred because of a failure by the Veteran or provider to comply with the provisions of that health-plan contract, e.g. failure to submit a bill or medical records within specified time limits, or failure to exhaust appeals of the denial of payment);
(h) If the condition for which the emergency treatment was furnished was caused by an accident or work-related injury, the claimant has exhausted without success all claims and remedies reasonably available to the Veteran or provider against a third party for payment of such treatment; and the Veteran has no contractual or legal recourse against a third party that could reasonably be pursued for the purpose of extinguishing, in whole or in part, the Veteran's liability to the provider.
(i) The veteran is not eligible for reimbursement under 38 U.S.C. 1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA payment or reimbursement for emergency treatment to a limited group of Veteran's, primarily those who receive emergency treatment for a service-connected disability).
Failure to satisfy any one of the above criteria precludes VA from paying or reimbursing unauthorized private medical expenses. [Note: In 2012, these criteria were amended. The following criterion was deleted: The claim for payment or reimbursement for any medical care beyond the initial emergency evaluation and treatment is for a continued medical emergency of such a nature that the Veteran could not have been safely discharged or transferred to a VA or other Federal facility (the medical emergency lasts only until the time the Veteran becomes stabilized).]
After a review of the evidence, the Board finds that the Veteran should be reimbursed for the costs of treatment at Baptist from August 4, 2010 to August 6, 2010. The reason for treatment was not due to an accident or work injury. There is no dispute that Baptist provides and did provide emergency care and the Veteran is financially liable for the costs. He testified that he had no insurance and VA documentation also established had no other insurance or any other health care plan to cover the costs. The VAMC treatment records also establish he had received care in the VA health system in the preceding 24 month period. Finally, as noted above, although the Veteran was service connected for several disabilities, none were involved for causing the Baptist hospitalization. Therefore, the Veteran is not eligible for reimbursement under 38 U.S.C. 1728.
As to whether the care at Baptist was provided in a medical emergency, an emergency is defined as "a sudden, generally unexpected occurrence or set of circumstances demanding immediate action." Hennessey v. Brown, 7 Vet. App. 143, 147 (1994). The regulations do not require that a Veteran's treatment actually be proven emergent from a purely medical standpoint in order to qualify for payment or reimbursement, but from that of a reasonably prudent layperson. See 38 C.F.R. § 17.100. The Board finds the Veteran competent and credible to report his symptoms and their level of severity that caused him to seek medical treatment on August 2, 2010. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (the Board has been charged with the duty to assess the credibility and weight given to evidence). Further, the Board finds that the Veteran's acute symptoms, including pain, were severe enough that a prudent layperson who possesses an average knowledge of health and medicine would seek immediate medical attention because he would not expect that he could wait or delay seeking treatment or it would be hazardous to his health or life and a VA or other Federal facility/provider was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. Moreover, there is objective evidence that confirms the Veteran's decision to seek immediate care was a prudent one. The Veteran testified that the emergency room doctor told him not to leave the facility if he wanted to live to the next day. VAMC notes also demonstrate a VA nurse strongly urged the Veteran to go to the emergency room rather than waiting as he originally wanted to do.
The remaining questions are when the medical emergency ended and the Veteran was stable for transfer to a VAMC and if so, whether a VAMC bed was available. Claims for payment of the costs of emergency hospital care or medical services not previously authorized will not be approved for any period beyond the date on which the medical emergency ended. An emergency shall be deemed to have ended when a VA physician has determined that the Veteran could have been transferred to a VA medical center for continuation of treatment or when the Veteran could have reported to a VA medical center for treatment. See 38 C.F.R. § 17.12, 17.1005.
In this instance, while a VA physician deemed the Veteran was stable and could be transferred, the medical evidence establishes that the physicians at Baptist determined he could not be transferred until he underwent a stress test to rule out any cardiac cause for his symptoms and that test could not occur until August 6, 2010. Thus, there is competent medical evidence in favor of the Veteran and against the Veteran on whether he was stable for transfer. Given both positive and negative evidence of seemingly equal probative value, the Board finds that the evidence of record is in equipoise as to the matter of whether the Veteran's condition allowed him to be transferred to VAMC from Baptist. The benefit of the doubt rule applies and is resolved in the Veteran's favor that he had not stabilized for transfer to VAMC until August 6, 2010 when he became stable enough not only be transferred but discharged after his physicians ruled out any cardiac conditions. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993).
For the sake of completeness, however, the Board will examine whether a VAMC bed was available. See Luallen v. Brown, 8 Vet. App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (finding that the Board has the fundamental authority to decide in the alternative). The VA records indicate Baptist contacted VA regarding transfer and the matter was referred to the transfer coordinator but no response appears in either Baptist or VAMC records. The Veteran testified that he was told no beds were available. Again, applying the benefit of the doubt rule in the Veteran's favor, the Board finds that there were no available beds at VA from August 4, 2010 to August 6, 2010.
Given the foregoing, the Board finds that that payment or reimbursement of emergency treatment rendered at the Baptist Medical Center-Beaches, Jacksonville Beach, Florida from August 4, 2010 to August 6, 2010, is warranted. Therefore, the claim is granted.
ORDER
Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a non-VA medical facility, Baptist Medical Center-Beaches, Jacksonville Beach, Florida, from August 4, 2010 to August 6, 2010, is granted.
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs